How Idaho Can Take Back Its Lawmaking Power

Can the people's representatives reclaim what they willingly gave away?

Yesterday I examined the concept that political power rightfully derives from “we the people”. Inherent in that derivation is the idea that the power to make law is specifically delegated to elected legislators, and nobody else. Article I, Section 2 of the Idaho Constitution states that:

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.

We the people of Idaho have delegated our inherent political power to the government, and specifically to the Legislature, which creates laws on our behalf. Yet with how sprawling and complex modern governments have become, is it efficient for a part-time Legislature to exercise total control over the laws that structure society?

No, it’s not efficient. Since legislators must be reelected every two years, it can be difficult to maintain consistency in how policies are applied. Wouldn’t it be better to have personnel who are not subject to political winds or voters’ whims running the ship?

Enter the bureaucracy. Way back in 1883, President Chester Arthur signed the Pendleton Civil Service Reform Act, which was meant to replace the “spoils system”—where presidents tended to appoint friends and supporters to run the executive branch—with a permanent civil service, ostensibly based on merit.

President Franklin Roosevelt took the civil service to a new level with the massive expansion of the federal government under his New Deal. By the late 1960s, President Richard Nixon lamented how powerful the bureaucracy had become—and that was before it drove him from office.

Yet just because something is efficient doesn’t make it right. The last century has seen a steady delegation of legislative authority to unelected bureaucrats, which further removes the people from the exercise of their own inherent political power. When we the people retreat from accountability, and our elected lawmakers delegate their authority to the administrative state, we become more like subjects of an oligarchy than citizens of a republic.

Some bureaucrats take seriously their charge to faithfully implement the laws passed by the Legislature, while others see lawmakers as an unfortunate impediment to their goals. Two years ago, Idaho Freedom Foundation (IFF) published a mini-documentary accusing the Idaho Department of Health & Welfare (DHW) of acting as a “rogue bureaucracy.”

Niklas Kleinworth, then with IFF, exposed a DHW administrator named Elke Shaw-Tulloch speaking very candidly in an online meeting:

We’ll see some shifts in the politics of our state over time… I actually had a really great conversation with a legislator who said it’s going to get worse before it gets better… This is some national movement and some of these very conservative organizations that are going from state to state to state to do exactly this… it’s this disruption… Just know that we’re not alone. It feels yucky and gross but these, I think these sands will shift… and we’ll have to just kind of go through, ride this wave for a while and do what we can. And we might be doing some things a little bit more quietly than we used to…

According to LinkedIn, Shaw-Tulloch has been at DHW for more than thirty years, with nearly half of those as administrator of the Public Health Division. You can understand how she might come to believe that she, not elected legislators, should decide how DHW is meant to operate.

The biggest impediment to legislators taking back the authority they’ve improperly delegated to the bureaucracy is apathy. Some lawmakers are convinced that it really is better for executive branch administrators to handle the details—after all, they’re the experts, not the people’s representatives. Others see the problem as too big or cumbersome to solve, especially for a part-time Legislature that is only in session for three months out of the year.

Yet there are positive signs that Idaho is headed in the right direction. Over the weekend, the Cicero Institute published a paper holding up Idaho as a model for unwinding delegation of lawmaking authority to the bureaucracy, as well as cleaning up state code:

This paper builds upon previous research by the Cicero Institute and offers state agencies a practical, step-by-step guide to unwinding administrative delegation and restoring the legislative prerogative. Drawing on direct experience leading Idaho’s Department of Health and Welfare (DHW), the state’s largest agency, we outline an approach that has been tested in practice and is scalable across states. The strategy focuses on repealing obsolete statutes, conducting zero-based regulatory review, migrating refined rules into statute, and curbing non-statutory policymaking practices.

The paper, cowritten by Cicero’s Tim Frost along with former DHW director Alex Adams and former DHW special assistant Adam Jones, lays out a plan for other states to follow Idaho’s lead in reclaiming lawmaking authority. It suggests repealing obsolete statutes, adopting a zero-based budgeting perspective, migrating long-held rules into statute, and minimizing informal and non-statutory policymaking. The entire paper is well worth your time and is not very long.

During his short time leading DHW, Alex Adams implemented many such reforms. House Bill 91 during the 2025 session eliminated or amended dozens of sections of code related to DHW that had been identified as obsolete or unnecessary. Several bills moved DHW administrative rules into statute, where they can be better overseen by our elected representatives. Other bills, such as House Bill 90, curtailed the ability of DHW to make radical changes to policy without legislative approval.

It’s up to the governor, Legislature, and agency heads to carry this work forward. I was pleased to see Gov. Brad Little discuss cleaning up state code and administrative rules during his State of the State Address this month, as well as Rep. Jordan Redman continuing to pursue consolidation of statutes related to the Division of Occupational Licensing (DOPL).

This is the perfect time to make long-term structural changes to the Idaho Administrative Procedures Act (IDAPA), which governs the bureaucratic rulemaking process. The Legislature should consider codifying a sunset clause for every rule, ensuring that it must either be reauthorized by future legislatures or expire. Additionally, any rules that have been in place for a long time should be moved into statute. Perhaps most importantly, the Legislature needs to repeal the ability for agencies to draft their own rules, except perhaps in specific circumstances. For example, House Bill 290 from the 2025 session simultaneously moved rules regarding childhood vaccines into statute while repealing the section of code that authorized DHW to set those standards.

In the end, it is the responsibility of elected legislators to make good laws on behalf of the people of Idaho. Delegating that authority to unelected bureaucrats, even those with the best of intentions, while perhaps more efficient, removes a crucial layer of accountability. We are citizens of a republic, not subjects of a technocratic oligarchy. We must be willing participants in the lawmaking process, not disinterested observers who have no choice but to take what we’re given.

There might never be a better time to engage in the structural reforms necessary to bring Idaho government closer to the people it serves. DOGE is still a popular concept, and reform is in the air. Rather than simply sitting back and allowing the executive branch to absorb the lion’s share of political power, our elected lawmakers must reclaim what is rightfully theirs—and ours.

Feature image taken by Brian Almon in the Capitol rotunda.